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Christiana Bank & Trust Company v. Karen Mckay

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 24, 2013

CHRISTIANA BANK & TRUST COMPANY, AS OWNER TRUSTEE OF SECURITY NATIONAL FUNDING TRUST, PLAINTIFF-RESPONDENT,
v.
KAREN MCKAY, DEFENDANT-APPELLANT, AND RENAISSANCE VILLAGE I CONDOMINIUM ASSOCIATION, INC., DEFENDANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-42181-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 15, 2013

Before Judges Reisner and Harris.

Defendant Karen McKay appeals from the September 14, 2010 final judgment of foreclosure;*fn1 the February 3, 2012 order denying her application for Rule 4:50 relief; and the April 30, 2012 order denying her motion to vacate the sheriff's sale that had occurred on March 14, 2012. We affirm.

I On May 25, 2006, McKay executed a note in the amount of $206,700, which was secured by a mortgage encumbering her condominium unit located in North Brunswick. Plaintiff Christiana Bank & Trust Company was assigned the mortgage and commenced the present foreclosure action on October 24, 2008, when the note went into default. McKay represented that her last payment towards the indebtedness was in 2009; plaintiff averred that McKay defaulted in June 2008.

After efforts to rescue McKay's loan failed, plaintiff moved for the entry of a final judgment. McKay, although participating in the unsuccessful effort to restore the loan, never filed an answer to the complaint. Final judgment was entered on September 14, 2010. Although she was served with the final judgment, McKay did not appeal at that time.

Almost sixteen months elapsed before McKay moved to vacate the final judgment and dismiss the complaint. The ground asserted for vacating the judgment was McKay's claim that plaintiff had never properly served the foreclosure complaint upon her and that plaintiff's process server "made a False Affidavit stating he served [her] the Summons and Complaint at [her residence] on November 2, 2008 12:45PM," when McKay was allegedly at work in Newark.

The motion judge heard oral argument in early February 2012. He reviewed the process server's affidavit of service, as well as an unauthenticated letter from McKay's employer. The affidavit claimed that McKay was served with the summons and complaint on November 2, 2008, in North Brunswick; the letter indicated that McKay was at work in Newark on that same day.

The judge engaged McKay in a conversation on the record that revealed McKay's work schedule was routinely Monday through Friday, with an occasional Saturday. The judge indicated that the date of the disputed service of process was November 2, 2008 -- a Sunday -- of which McKay was unaware. Notwithstanding this gaffe, McKay insisted upon "standing on the papers." Additionally, McKay claimed that "the reason why [she is] acting on this is because [she] came home one day and [] found a sheriff's sale on my door. That made [her] jump."

In explaining why he denied the Rule 4:50 motion, the judge recited a list of notices that were issued during the life span of the foreclosure litigation, including plaintiff's motion for judgment, notice of the entry of final judgment, and "a numerous number of notices sent by a number of people, and every one has [McKay's] address on it." The judge rejected McKay's assertions, concluding,

You're basically asking me to accept the fact that you got -- you were never on notice of anything until you got a sheriff's notice posted to your door. When you look at all these documents, I find it impossible to ignore everything in there, especially after you conceded that since [2009], you've paid nothing, by the way.

The order denying relief was entered on February 3, 2012. McKay filed a notice of appeal on February 29, 2012.

Notwithstanding the pending appeal, McKay filed a motion in the Chancery Division on March 19, 2012, seeking to vacate the sheriff's sale that had occurred on March 14, 2012.*fn2 The ground asserted for such relief was McKay's claim that plaintiff had failed to submit a "Certification of Diligent Inquiry" to the Sheriff prior to the sale. Plaintiff responded with uncontradicted evidence that, contrary to McKay's unsubstantiated claim, it had filed the appropriate certification in January 2012.

On April 30, 2012, the Chancery judge denied McKay's motion finding that it was moot due to the sheriff's sale having been already conducted. The judge added, "The record should also reflect that this matter has been pending since 2008, when default occurred. And there's no denying whatsoever that [McKay] has been in default for some four years." A memorializing order was entered the same day. This appeal followed.

II.

On appeal, McKay presents the following points for our consideration:

POINT I: CERTIFICATION OF DILIGENT INQUIRY WAS NOT FILED OR SERVED ON DEFENDANT.

POINT II: PLAINTIFF CANNOT RECOVER FROM DEFENDANT IN ITS OWN NAME.

POINT III: PLAINTIFF'S FAILURE TO SERVE A NOTICE FOR FINAL JUDGMENT WARRANTS THE VACATION OF THE JUDGMENT.

After reviewing the record, we are in agreement with the Chancery judge's ultimate determinations, particularly that the matter is "totally lacking in merit." See R. 2:11-3(e)(1)(E).

Affirmed.


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